Summary of NLRB Decisions for Week of September 26-30, 2011
The Weekly Summary is provided for informational purposes only and is not intended to substitute for the opinions of the NLRB. Inquiries should be directed to the Office of Public Affairs at Publicinfo@nlrb.gov or 202-273-1991.
Summarized Board Decisions
Bruce Packing Company, Inc. (36-CA-10496, et al.; 357 NLRB No. 93) Silverton, OR, September 28, 2011.
The Board found that the employer violated Section 8(a)(3) of the Act through its selection of four employees for layoff. The Board held that the employer had failed to demonstrate that it would have selected the same four employees absent a supervisor’s unlawfully-motivated input into the selection decision. Member Hayes would have found that the employer met its burden with respect to one of the employees. The Board unanimously affirmed the Administrative Law Judge’s finding of an unlawful interrogation. The Board also found that the judge should have granted the General Counsel’s motion to amend the complaint to allege an unlawful promise of benefits because the allegation was fully litigated and the amendment would not prejudice the employer. The Board granted the motion and found the additional violation. Member Hayes dissented and would have affirmed the judge’s denial of the motion, finding that due process requirements preclude finding a violation.
Charges filed by Laborers’ International Union of North America, Local 296, AFL-CIO. Administrative Law Judge Lana H. Parke issued her decision April 8, 2010. Chairman Pearce and Members Becker and Hayes participated.
***
LaGuardia Associates, LLP d/b/a Crowne Plaza LaGuardia (29–CA–29347; 357 NLRB No. 95) East Elmhurst, NY, September 30, 2011.
The Board adopted the Administrative Law Judge’s finding that, in a group of employees who were disciplined following presentment of a petition to a manager, three employees had lost the protection of the Act. But the Board found, contrary to the judge, that the other ten employees in the group had not lost the Act’s protection. The Board noted that an employee’s conduct must be assessed individually and drew a distinction between the three employees who made deliberate, physical contact with a manager and the remaining employees who did not. The Board found the Respondent violated the Act by disciplining those employees who had not lost the Act’s protection. Member Hayes dissented in part, contending that all thirteen employees had lost the Act’s protection by engaging in activities that included loud, disruptive chanting in a public place in violation of the employer’s workplace rules.
Charge filed by New York Hotel & Motel Trades Council, AFL–CIO. Administrative Law Judge Steven Davis issued his decision December 28, 2009. Chairman Pearce and Members Becker and Hayes participated.
***
Mays Printing Company, Inc. (7-CA-51544, 52247; 357 NLRB No. 94) Detroit, MI, September 30, 2011.
The Acting General Counsel sought a default judgment in this case on the ground that the Respondent failed to file an answer to the compliance specification. In Cases 7-CA-5144 and 7‑CA-52247, the Board ordered the Respondent to make whole discriminates by paying backpay, plus interest accrued to the date of payment, and minus tax withholdings required by Federal and State laws. The Board declined to apply its new policy, announced in Kentucky River Medical Center of daily compounding of interest on backpay awards, in cases such as this, that were already in the compliance stage on the date that decision issued, Rome Electrical Systems, Inc.
Charges filed by Local 2/289-M, Graphic Communications Conference, District Council 3, International Brotherhood of Teamsters. Unpublished order adopting, in the absence of exceptions, the decision of Administrative Law Judge Arthur J. Amchán issued May 11, 2010 (JD-03-10). Chairman Pearce and Members Becker and Hayes participated.
***
Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Case
Continental Janitorial Services (5-RC-16614) Herndon, VA, September 27, 2011. Decision and direction – the Board adopted the Hearing Officer’s findings and recommendations that the Regional Director open and count ballots. Charge filed by Public Service Employees, Local 572 affiliated with Laborers’ International Union of North America.
Adams Insulation, Inc. (9-RC-18310) Lexington, KY, September 27, 2011. Decision and order remanding proceeding to Regional Director to arrange and issue a notice of hearing. Charge filed by International Association of Heat and Frost Insulators and Allied Workers, Local 51. Chairman Pearce and Members Becker and Hayes participated.
Teal Electric Company (7-RD-3685) Troy, MI, September 30, 2011. No exceptions filed, the Board adopted the Regional Director’s findings and recommendations and found that a certification of results of election should be issued. Charge filed by an Individual.
Grocery Haulers, Inc. (3-RC-11944) Albany, NY, September 30, 2011. Order remanding case to the Regional Director for further consideration in light of UGL-UNICCO Service Company. Member Hayes dissented for the reasons stated in his dissent in UGL-UNICCO Service Company, would have processed the petition. Charge filed y Teamsters, Local 294, International Brotherhood of Teamsters. Chairman Pearce and Members Becker and Hayes participated.
C Cases
Europa Auto Imports, Inc. d/b/a Mercedes-Benz of San Diego (21-CA-63725) San Diego, CA, September 27, 2011. Order transferring proceeding to the Board and notice to show cause why the Acting General Counsel’s motion should not be granted. Charge filed by International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge 190.
Allison Enterprises, Inc. d/b/a Island Beachcomber Hotel (24-CA-11565) St. Thomas, VI, September 28, 2011. Order transferring proceeding to the Board and notice to show cause why the Acting General Counsel’s motion should not be granted. Charge filed by United Steelworkers of America, Local 8352.
Vocell Bus Company (1-CA-45915) Malden, MA, September 29, 2011. Order transferring proceeding to the Board and notice to show cause why the Acting General Counsel’s motion should not be granted. Charge filed by International Brotherhood of Teamsters, Local Union 25.
Dynamic Energy Inc., and M&P Services, Inc., a single employer (9-CA-45772, et al.) Beaver, WV, September 30, 2011. No exceptions filed, the Board adopted the findings and conclusions of the Administrative Law Judge and ordered the Respondent to take the recommended action. Charge filed by United Mine Workers of America, AAFL-CIO.
JLL Restaurant, Inc., d/b/a Smoke House Restaurant, Inc. (31-CA-26240 et al.) Burbank, CA, September 30, 2011. Order denying Acting General Counsel’s motion to strike and for partial summary judgment and remanding proceeding to the Regional Director for further appropriate action. Charges filed by Hotel Employees and Restaurant Employees Union, Local 11, AFL-CIO. Chairman Pearce and Members Becker and Hayes participated.
***
Appellate Court Decision
Oaktree Capital Mgt., No. 37-CA-6601 (published at 355 NLRB No. 147) (5th Cir., decided September 26, 2011)
In this unpublished decision, the Fifth Circuit upheld the Board's finding that Oaktree Capital Management and its subsidiary, Turtle Bay Resort (TBR), constituted a single employer of a Hawaii resort, and were jointly responsible (along with resort manager Benchmark Hospitality) for numerous unfair labor practices committed during negotiations for a new contract. The Court found that the resort unlawfully denied access to representatives of UNITE HERE Local 5, which represents about 360 resort employees, and prevented the union from collecting dues at the resort. In addition, the Court summarily enforced the Board’s March 2009 order (reissued in 2010) that Oaktree and TBR, along with Benchmark, violated federal labor law by refusing to bargain in good faith, suspending and terminating employees for their union activity, maintaining overly broad rules that prohibit employees from distributing literature in non-work areas during non-work times, and threatening to close the resort in retaliation for protected activity, among other ways. In its ruling, the Board ordered the employer to stop the illegal activity, provide the union with information requested for bargaining, offer reinstatement to the terminated employee, and make whole any loss of earnings to the terminated and suspended employees. Oaktree Capital, TBR Property and Benchmark Hospitality appealed the Board’s findings of joint liability and unlawful denial of access. In its 2-to-1 decision, the Court denied the appeal and enforced the Board’s order.
***
Decisions of Administrative Law Judges
Pacific Maritime Association (21-CA-39434, et al.; JD(SF)-37-11) Long Beach and Los Angeles, CA. Charges filed by an Individual. Administrative Law Judge John J. McCarrick issued his decision September 26, 2011.
Noel Canning, a Division of the Noel Corporation (19-CA-32872; JD(SF)-35-11) Yakima, WA. Charge filed by Teamsters, Local 760. Administrative Law Judge Gerald A Wacknov issued his decision September 26, 2011.
Kerry, Inc. (7-CA-52965 et al.; JD(ATL)-27-11) Kentwood, MI. Charges filed by Local 70, Bakery, Confectionery, Tobacco Workers and Grain Millers International Union, AFL-CIO. Administrative Law Judge Keltner W. Locke issued his decision September 27, 2011.
SCC Oakland Cambridge Operating Company, LLC d/b/a Cambridge East Healthcare Center (7‑CA‑53548; JD-62-11) Madison Heights, MI. Charge filed by an Individual. Administrative Law Judge Paul Bogas issued his decision September 28, 2011.
Karl Knauz Motors, Inc., d/b/a Knauz BMW (13-CA-46452; JD(NY)-37-11) Lake Bluff, IL. Charge filed by an Individual. Administrative Law Judge Joel P. Biblowitz issued his decision September 28, 2011.
Dover Hospitality Services, Inc., a/k/a Dover Caterers, Inc., a/k/a Dover College Services, Inc. (29-CA-30591; JD(NY)-35-11) Selden and Brentwood, NY. Charge filed by Local 1102 of the Retail, Wholesale & Department Store Union, United Food & Commercial Workers Union. Administrative Law Judge Steven Fish issued his decision September 28, 2011.
White Plains Hospital Center (2-CA-40160; JD(NY)-36-11) White Plains, NY. Charge filed by an Individual. Administrative Law Judge Lauren Esposito issued her decision September 28, 2011.
Titus Electrical Contracting, Inc. (16-CA-21613, et al.; JD(ATL)-29-11) Austin, TX. Charges filed by International Brotherhood of Electrical Workers, Local 520. Administrative Law Judge Margaret G. Brakebusch issued her decision September 29, 2011.
El Paso Healthcare System, LTD. d/b/a Las Palmas Medical Center (28-CA-23368; JD(SF)‑38-11) El Paso, TX. Charge filed by National Nurses Organizing Committee – Texas/NNU. Administrative Law Judge Gerald M. Etchingham issued his decision September 29, 2011.
National Association of Letter Carriers, AFL-CIO, Branch 142 (United States Postal Service) (5‑CB‑11093; JD-61-11) Washington, DC. Charge filed by an Individual. Administrative Law Judge Michael A. Rosas issued his decision September 29, 2011.
Warren Unilube, Inc. (26-CA-23910; JD(ATL)-28-11) West Memphis, AR. Charge filed by Teamsters, Local 667. Administrative Law Judge Robert A. Ringler issued his decision September 30, 2011.
WKYC-TV, Inc. (8-CA-39190; JD-60-11) Cleveland, OH. Charge filed by National Association of Broadcast Employees and Technicians, Local 42 a/w Communications Workers of America, AFL-CIO. Administrative Law Judge Jeffrey D. Wedekind issued his decision September 30, 2011.
Northfield Urgent Care, LLC (18-CA-19755; JD-58-11) Northfield, MN. Charge filed by an Individual. Administrative Law Judge Paul Buxbaum issued his decision September 30, 2011.
***
To have the NLRB’s Weekly Summary of Cases delivered to your inbox each week, please subscribe here.